Response to the Charlotte Observer’s response to today’s op-ed

The Charlotte Observer mischaracterizes almost everything about my op-ed.

Let?s clarify a lot of things:

1) Never have I stated the EPA doesn?t have the authority to regulate greenhouse gases (GHG). Nor have I said the EMC doesn?t have the authority to regulate GHG. This is the same mistake made in the original article regarding our objections. My concern is with the EPA?s Tailoring Rule. These are distinct issues that the Observer continues to muddle.

2) The Tailoring Rule wasn?t designed to minimize the harm to small businesses. It is an EPA rule that is designed to allow the agency to regulate GHG and to do so without getting slammed for creating ?absurd results.?

When it was clear that the Clean Air Act would have created ?absurd results? by mandating permitting of GHG, the proper legal action was not to regulate GHG. Instead, the EPA decided to ignore the law so they could find a way to regulate GHG.

North Carolina even expressed concern to the EPA about its legal analysis regarding the Tailoring Rule (as I discuss in my op-ed).

3) The EPA has issued rules (12/23/2010) clarifying that small emitting sources won?t be required to get permits at this time. See: http://www.epa.gov/nsr/actions.html.

I also have spoken to the EPA about this issue.

However, even if these rules never were published, the EPA was well aware that many states had to go through the political process to implement these rules. Usually, states are given years to make such changes, and in this situation they have only been given months by the EPA.

North Carolina sent the EPA a letter, like other states did, that state rules may not go into effect until after January 2, 2011 because of our political process. As a practical matter, there was no risk in objecting to the state rules. The objections allow the legislature to decide how to address the Tailoring Rule. This can be done promptly.

Further, if there was such a serious concern from the Perdue Administration, Governor Perdue always could have issued an executive order as allowed by the state Administrative Procedure Act that would have made the EMC rules effective immediately. This was something I explained to the Observer for its original article.

4) The purpose of our objections was to allow the legislature to decide whether and/or how to comply with the regulations. This is a good government issue. Those who are elected and accountable to the people should make such a critical decision regarding whether North Carolina will regulate GHG for the first time ever. Unelected state bureaucrats shouldn?t make that decision.

The editorial gives the impression that I believe that non-compliance is the only course of action. My op-ed clearly states that risks do exist with non-compliance.

By objecting to the rule, JLF has made it possible for the legislature to address another possible absurd result where, by complying, North Carolina businesses would be forced to deal with GHG rules even if the federal mandate no longer exists. If other states didn?t have such a burden, North Carolina would be at a major competitive disadvantage.

5) I am happy to see the Charlotte Observer is so concerned about businesses. If an environmental group delayed the permitting of businesses, which is commonplace, I doubt they would express such concern. Yet, because permitting is being (allegedly) delayed because of a desire for good government, the rule of law, and state sovereignty, there is a cause for concern.

Bottom Line: JLF objected to the state rule out of principles that are fundamental to our country and the state of North Carolina. The legislature is the lawmaking body of this state, not the EMC. There should be a respect for the rule of law so when a federal agency is imposing illegal rules, the state should consider its role in being complicit in implementing those rules.

Finally, North Carolina should be concerned when a federal agency is trying to impose its will on our state?these are serious issues of federalism, and the proper role of a federal agency, that should at least be considered. It doesn?t seem like too much to ask for us to take a few weeks to allow the legislature to consider these issues.